Floor Statements

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Madam President, I ask for the yeas and nays, and I yield back any remaining time.

It is a jobs bill, it is an energy bill, it is a national security issue, and it sends the message around the world that we are not going to be dependent upon the rest of the world for our energy. It is all those things and probably a lot more, and I thank the Senator from North Dakota for putting this afternoon together and

also, over a long period of time, being a spokesman for the Keystone XL Pipeline not only here in the Senate, but I have seen the Senator on Sunday news shows speaking to the entire Nation about the value of the Keystone XL Pipeline.

I think today we are saying enough is enough. We are saying it is time to end the unjustified and--now we know--the political delay of the construction of the Keystone XL Pipeline. I am glad so many of my colleagues are coming to the floor today to call for the approval of this project.

The TransCanada Corporation applied for a Presidential permit from the U.S. Department of State to construct and operate the Keystone XL Pipeline way back in September of 2008. Yet here we are still talking about it. For nearly 6 years this administration has been sitting on the application. Time and time again the State Department, which has the responsibility to review, reviewed the environmental impacts of the pipeline, and once again, time and time again, they found that the pipeline will have no significant impact on the environment.

In 2011 Secretary Clinton said a decision would come before the end of 2011. In March 2013, when President Obama was invited to come and talk to Senate Republicans in our caucus--and he was told he could talk about anything he wanted to talk about--one of the topics that came up was that a decision would be made on this pipeline before the end of 2013. He said that 13 months ago, yet still no decision.

As has been stated by my colleagues, on Good Friday afternoon of this year, the State Department announced an indefinite delay in the comment period on the pipeline project. So it appears unlikely that President Obama will make a decision at any time in the near future, if ever.

This indefinite delay is mind-boggling considering all the advantages of this pipeline. Granting the permit for the pipeline will create thousands of jobs directly and indirectly. It will provide more than 800,000 barrels of Canadian oil daily from a friendly economic partner.

Rejection of the pipeline permit will not affect Canada's decision to develop these oil resources because they are smarter than we are. They have made a national decision that they are going to harvest their energy resources, whereas we are playing around as to whether we ought to do that. As we play around, we tend to be more dependent upon foreign sources. So the Keystone Pipeline is clearly in the national interest of the United States. Yet President Obama is unwilling and unable--or maybe I should say ``or unable''--to make a decision.

Just think of the economy today and what this could do to improve the economy, particularly with regard to the unemployment factor in our economy, currently at 6.7 percent. That means 10 million jobs that are not available for Americans. That number is the unemployed. The labor force participation rate remains near a 35-year low, at 63.2 percent. If the labor force participation rate were the same as when President Obama took office, the unemployment rate would be 10.3 percent instead of 6.7 percent. With these deplorable unemployment numbers, one would think the President would be very anxious to get as many people employed as he could.

The President and the Senate majority here, which happens to be 55 Democrats, should be doing everything they can to grow the economy and create jobs. This would be something that could be bipartisan. In fact, we have already had bipartisan votes on this subject. Yet the Senate Democratic leadership continues to block Senate action to approve the permit. Instead, they are proposing ideas that would actually cost jobs rather than create jobs at a time of 6.7 percent unemployment. For example, later this week we in the Senate will vote on a proposal to increase the minimum wage. The nonpartisan Congressional Budget Office concluded that this proposal will cost 500,000 jobs and perhaps as many as 1 million jobs. That is not the Republican Party making that statement; that is the professional people of the Congressional Budget Office.

It should be noted that while a higher minimum wage will benefit those low-wage workers who remain employed, it will also push the least skilled, most disadvantaged, and most vulnerable workers out of employment. We should be doing everything to increase employment, not having more people laid off.

We have the health care reform bill--another great example. The Congressional Budget Office estimated earlier this year that the health care reform bill will result in 2\1/2\ million fewer workers in our workforce by 2025.

President Obama has also proposed another $1.8 trillion in new taxes in his latest budget proposal. Higher taxes stifle economic growth and cost jobs.

The policies being advocated by the majority party and by the President limit opportunities for working families, reduce economic growth, and prevent the economy from achieving its full potential.

Obviously, getting back to the Keystone Pipeline, the decision to grant the permit for that pipeline is no longer being considered based on policy but based on politics. That is too bad for America's energy consumers and thousands of job seekers who would benefit.

I don't happen to come from the oil patches of Texas, Oklahoma, or North Dakota. There are no oil or gas producers in my State. But I do support an energy policy that is truly ``all of the above.'' I represent farmers and consumers who want access to affordable, reliable energy. I represent Iowans who would rather get their energy from a friend and ally such as Canada rather than Venezuela or unstable parts of the Middle East, where they will take our money and probably use it to train people who want to kill Americans. I represent Iowans who actually know that this oil will be developed regardless of this pipeline, and they know it is just a question of whether it will come to the United States or end up in China.

I represent Iowans who understand the economic and national security impact of this pipeline. They want to see the government get out of the way of this shovel-ready, private-sector infrastructure project.

How many times were we promised in the stimulus bill that we were going to create X number of jobs that were shovel ready? Most of that $800 billion went to public employment, not to shovel-ready jobs. The President even admitted that.

This pipeline is shovel ready. It is time to end the political delay and approve this pipeline.

I yield.

Mr. President, I am glad to yield.

I think that is very basic economics: Increase supply and reduce price.

The other matter is it makes us more energy independent. We spend hundreds of millions of dollars every day to import oil. There is no sense doing that when we can get it right here in North America.

Reserving the right to object, and I would offer an alternative; but before I do that, I wish to say to my colleagues in the U.S. Senate that, first of all, there is controversy about this nominee. Let's make that clear. And second, the majority leader said maybe the people of this country don't really understand what is going on.

They understand what is going on. We are working under the rules that the majority changed by ignoring the rules of the U.S. Senate in November. So as the majority leader knows, we have not yielded back postcloture time on judicial nominations since the so-called nuclear option was triggered last November.

We have followed the rules of the U.S. Senate for regular order on all judges before the Senate in the last 5 months, just exactly the way the rules were changed in November. So there is 30 hours of postcloture debate on this nomination.

Therefore, I would ask the consent request be modified so that the vote on confirmation would occur at 5:30 p.m., Monday, April 28, when we return from the April recess. This would allow the Senate to process the pending cloture nomination on the wage and hour nominee this afternoon and set that confirmation vote also for Monday, when we return on April 28. That is the alternative I offer to the majority.

Reserving the right to object, and I will object, but to remind everybody, when the majority leader says that nothing is being done on judges, we have confirmed 233 judges and only disapproved the 2; so don't ever try to sell the American people on the idea that the Senate is not doing its work on getting judges approved.

I object.

Mr. President, 25 years ago today the Whistleblower Protection Act of 1989 was signed into law. To mark that anniversary, I come to the floor to discuss some of the history that led to that legislation, the lessons learned over the past 25 years, and the work that still needs to be done to protect whistleblowers.

I emphasize that last part because there still needs to be a lot of work done to protect whistleblowers. The Whistleblower Protection Act was the result of years of effort to protect Federal employees from retaliation. Eleven years before it became law in 1989, Congress tried to protect whistleblowers as part of the Civil Service Reform Act of 1978.

I was then in the House of Representatives. There I met a person named Ernie Fitzgerald, who had blown the whistle on the Lockheed C-5 aircraft program going $2.3 billion over budget. Ernie was fired by the Air Force for doing that, and as he used to say: He was fired for the act of ``committing truth.''

When the Nixon tapes became public after Watergate, they revealed President Nixon personally telling his Chief of Staff to get rid of that SOB. That is how a famous whistleblower who pointed out the waste of $2.3 billion was treated.

The Civil Service Commission did not reinstate Ernie until 12 years later. In the meantime, he was instrumental in helping get the Civil Service Reform Act of 1978 passed. Yet it soon became very clear that law did not do enough to protect whistleblowers. In the early 1980s, the percentage of employees who did not report government wrongdoing due to fear of retaliation nearly doubled.

Some whistleblowers still had the courage to come forward. In the spring of 1983, I became aware of a document in the Defense Department known as the Spinney report. The report exposed the unrealistic assumptions being used by the Pentagon in its defense budgeting. Those unrealistic assumptions were the basis for add-ons later on so defense contractors could bid up the cost. It was written by Chuck Spinney, a civilian analyst in the Defense Department's Program Evaluation Office.

I asked to meet with Chuck Spinney but was stonewalled by the Pentagon. When I threatened a subpoena, we finally got them to agree to a Friday afternoon hearing in March 1983. The Pentagon hoped the hearing would get buried in the end-of-the-week news cycle. Instead, on Monday morning the newsstands featured a painting of Chuck Spinney on the front cover of Time magazine.

It labeled him as ``a Pentagon Maverick.'' I called him what he ought to be called, the ``conscience of the Pentagon.'' The country owes a debt of gratitude to people such as Ernie Fitzgerald and Chuck Spinney. It takes real guts to put your career on the line, to expose waste and fraud, and to put the taxpayers ahead of Washington bureaucrats.

In the mid-1980s, we dusted off an old Civil War-era measure known as the False Claims Act, as a way to encourage whistleblowers to come forward and report fraud. We amended that Civil War law in 1986 to create the modern False Claims Act, which has resulted in over $40 billion in taxpayers' money being recovered for the Federal Treasury. We made sure when we passed it that it contained very strong whistleblower protections. Those provisions helped to build up support for whistleblowing.

People such as Chuck Spinney and Ernie Fitzgerald helped capture the public imagination and showed what whistleblowers could accomplish.

However, that didn't mean the executive branch stopped trying to silence whistleblowers. For example, in the spring of 1987 the Department of Defense asked Ernie to sign a nondisclosure form. It would have prohibited him from giving out classifiable--as opposed to classified--classifiable information without prior written authorization. That, of course, would have prevented those of us in Congress from getting that information so we couldn't do our oversight work.

Further, the term ``classifiable'' didn't only cover currently classified information, it also covered any information that could later be classified.

The governmentwide nondisclosure form arguably violated the Lloyd- LaFollette Act of 1912. That law states that ``the right of employees . . . to furnish information to . . . Congress . . . may not be interfered with or denied.''

Just to make sure, I added the so-called anti-gag appropriations rider that passed Congress in December 1987. That rider, the anti-gag rider, said that no money could be used to enforce any nondisclosure agreements that interferes with the right of individuals to provide information to Congress. It remained in every appropriations bill until 2013. I then worked to get that language into statute in 2012 through the passage of the Whistleblower Protection Enhancement Act.

By the time of the first anti-gag rider in 1987, there was widespread recognition that all Federal employees ought to be protected if they disclosed waste and fraud to the Congress or for a lot of other reasons as well.

Meanwhile, I had also worked with Senator Levin of Michigan to coauthor what we called the Whistleblower Protection Act. It was introduced in February 1987. There were hearings on our bill in the summer of 1987 and the spring of 1988. It proceeded to pass the Senate by voice vote in August. Then the House unanimously did that in October. After reconciling the differences, we sent the bill to the White House. However, President Reagan failed to sign it. That meant we had to start all over again in the next Congress.

We didn't let President Reagan's inaction--because that was a pocket veto--stand in the way. Senator Levin and I moved forward again. When we reintroduced the bill in January 1989, I came to the floor to make the following statement:

We're back with this legislation in the 101st Congress, and

this time, we're going to make it stick.

Congress passed this bill last fall after extensive

discussions with members of the Reagan administration.

But in spite of the compromise we worked out, this bill

fell victim to President Reagan's pocket veto.

Whistleblowers are a very important part of government

operations. By exposing waste, fraud, and abuse, they work to

keep government honest and efficient. And for their loyalty,

they are often penalized--they get fired, demoted, and

harassed. . . . Under the current system, the vast majority

of employees choose not to disclose the wrongdoing they see.

They are afraid of reprisals and the result is a gross waste

of taxpayers' dollars.

Government employers should not be allowed to cover up

their misdeeds by creating such a hostile environment.

That is the end of the quote from the statement I made on the introduction of that bill in January 1989.

Once again, the bill passed the Senate and the House without opposition. Working with George H.W. Bush, this time we got the President to sign it. On April 10, 1989, the Whistleblower Protection Act became law.

We left part of the work undone 25 years ago. The Civil Service Reform Act of 1978 had exceptions for the FBI, the CIA, the NSA, and other parts of the intelligence community. The Whistleblower Protection Act left employees of those agencies unprotected, and so have the laws that followed it. I am very pleased that the preconferenced intelligence authorization bill released today will remedy that for the intelligence community.

Back in 2012 I championed the addition of intelligence whistleblower protections to the Whistleblower Protection Enhancement Act. The provisions I authored prohibited various forms of retaliation, including changing an employee's access to classified information. Working closely with the Senate Select Committee on Intelligence, we got that language into the bill that passed the Senate by unanimous consent May 8, 2012. However, it was not included in the bill the House passed on September 28, 2012.

Prior to the differences being reconciled on October 10, 2012, President Obama issued Presidential Policy Directive 19. It provided certain limited protections for whistleblowers with access to classified information. Yet that Executive order by President Obama was weaker than the provisions I had authored in the Whistleblower Protection Enhancement Act. Unfortunately, President Obama's actions undercut support for those provisions by suggesting that statutory protection was now necessary. The final law that passed in November left intelligence whistleblowers at the mercy of the Presidential directive.

Now, much of the language I had championed is in the Intelligence authorization bill currently under consideration. It is certainly a step up from Presidential Policy Directive 19. Making any protections statutory is very significant. The bill also has better substantive protections than the Presidential directive.

It does still have some gray areas, I am sorry to say. It leaves some of the policy and procedure development to the discretion of the executive branch, and that is a mistake we know exists because we had a similar thing happen with the FBI because in 1989 the protections of the Whistleblower Protection Act didn't apply to the FBI. That turned out to be a big mistake.

Yet that law did require the Attorney General to implement regulations for FBI whistleblowers consistent with those in the Whistleblower Protection Act. However, it soon became clear that was a little like putting the fox in charge of the henhouse. The Justice Department and the FBI simply ignored that part of the law for nearly 10 years. Not until 1997 did the Attorney General finally implement regulations for whistleblowers at the FBI.

The Justice Department was pushed into finally issuing those regulations by an FBI employee by the name of Dr. Fred Whitehurst. Dr. Whitehurst was considered by the FBI to be its leading forensic explosive expert in the 1990s.

What I am about to show you is that by being a good, patriotic American and blowing the whistle when something is wrong, you can ruin yourself professionally.

Shortly after the Whistleblower Protection Act was passed in 1989, Dr. Whitehurst disclosed major problems with the FBI crime lab. From 1990 to 1995 he wrote close to 250 letters to the Justice Department inspector general about these problems. In other words, he tried to be loyal to the agency he was in and work within that agency to expose wrongdoing but didn't get very far.

In January 1996 he formally requested that the President implement regulations as required by the Whistleblower Protection Act. Only after Fred was suspended in 1997 did the White House finally issue such a memo to the Attorney General. It instructed the Attorney General to create a process for FBI whistleblowers as directed by the Whistleblower Protection Act. Fred Whitehurst's case dragged on for another year until the FBI finally agreed to settle with him in February 1998. He got more than a $1 million settlement out of that just because he was trying to do the right thing. But he got his badge and his gun taken away from him, and he was, in a sense, ridiculed for doing what a patriotic American ought to do.

Fred Whitehurst is not alone in the FBI as far as people having problems. Over the years, others--such as Mike German, Bassem Youssef, Jane Turner, and Robert Kobus--have blown the whistle from within the FBI. Even after the inspector general issued findings in their favor, several had to navigate a never-ending Kafkaesque internal appeals process. It seemed designed to grind down these patriotic Americans into submission through years of inaction.

Now history has started to repeat itself. As Congress was passing the Whistleblower Protection Enhancement Act in 2012, President Obama issued Presidential Policy Directive 19. He tasked Attorney General Holder with reevaluating the same FBI whistleblower procedures that Fred Whitehurst helped get in place in 1997. The Attorney General was given 6 months to report back.

When the Attorney General didn't report back and didn't issue that report at the 6-month mark, I asked the Government Accountability Office to do its own independent evaluation of the FBI whistleblower protections.

Now 18 months after the President's directive, Attorney General Holder still hasn't released his report. This is a person appointed by the President of the United States, directed by the President of the United States to do something in 6 months, presumably loyal to the President of the United States, and he isn't doing what the Chief Executive of our great country told him to do.

Potential whistleblowers should not have to wait a decade, as they did with the first set of regulations. It appears that the Justice Department is simply sitting on its hands once again.

The example of the FBI should be instructive. Unlike the Whistleblower Protection Act, the Intelligence authorization bill is much more detailed about the protections Congress intends. It puts a time limit on how long the intelligence community has to create their procedures, giving them 6 months. However, remember that is exactly the same amount of time President Obama gave Attorney General Holder to come up with regulations, and it still hasn't happened 18 months later. Congress needs to be vigilant about getting both the intelligence community and the Attorney General to act.

In the meantime, the FBI fiercely resists any efforts at congressional oversight, especially on whistleblower matters. For example, 4 months ago I sent a letter to the FBI requesting its training materials on the insider threat program. When we just want copies of training materials, would that be difficult for a bureaucracy to present to a Member of Congress?

That program happened to be announced by the Obama administration in October of 2011. It was intended to train Federal employees to watch out for insider threats among their colleagues. Public news reports indicated that this program might not do enough to distinguish between true insider threats and legitimate whistleblowers. I relayed these concerns in my letter. I also asked for copies of the training materials. I said I wanted to examine whether they adequately distinguished between insider threats and whistleblowers so it didn't become a damper on whistleblowing.

In response, an FBI legislative affairs official told my staff that a briefing might be the best way to answer my questions. It was scheduled for last

week. Staff of both Chairman Leahy and myself attended. The FBI brought the head of their insider threat program. Yet the FBI didn't bring the insider threat training materials as we had requested. However, the head of the insider threat program told the staff of both Senator Leahy and myself there was no need to worry about whistleblower communications.

They are telling me that at a time when we have decades of history of whistleblowers being treated like skunks at a picnic? This gentleman said whistleblowers had to register in order to be protected and the insider threat program would know to avoid these people.

I have never heard of whistleblowers ever being required to ``register,'' in order to be protected. The idea of such a requirement should be pretty alarming to all Americans. We are talking about patriotic Americans wanting to make sure the government does what the law says it should do and spend money the way Congress intended it be spent. They have to register to be protected just because they are a patriotic American? The reason they can't do that is because sometimes confidentiality is the best protection a whistleblower has.

Unfortunately, neither my staff nor Chairman Leahy's staff was able to learn more because after only 10 minutes--only 10 minutes--in the office and into the briefing, the FBI got up and abruptly walked out.

It might be one thing to walk out on Republican staff, but they walked out on the staff of a Democratic chairman of one of the most powerful committees in the U.S. Senate as well--Chairman Leahy's staff.

FBI officials simply refused to discuss any whistleblower implications in its insider threat program and left the room. These are clearly not the actions of an agency that is genuinely open to whistleblowers or whistleblower protection.

Like the FBI, the intelligence community has to confront the same issue of distinguishing a true insider threat from legitimate whistleblowers. This issue will be impacted by title V of the current Intelligence authorization bill, which includes language about continuous monitoring of security clearance holders.

Director of National Intelligence James Clapper seems to have talked about such procedures when he appeared before the Senate Armed Services Committee on February 11 of this year. In his testimony he said this:

We are going to proliferate deployment of auditing and

monitoring capabilities to enhance our insider threat

detection. We're going to need to change our security

clearance process to a system of continuous evaluation. . . .

What we need is . . . a system of continuous evaluation,

where we have a way of--

Now, get this.

--monitoring their behavior, both their electronic behaviors

on the job as well as off the job, to see if there is a

potential clearance issue.

Director Clapper's testimony gives me major pause, as I hope it does my colleagues. It sounds as though this type of monitoring would likely capture the activity of whistleblowers communicating with Congress.

To be clear, I believe the Federal Government is within its right in monitoring employee activity on worker computers. That applies all the more in the intelligence community. However, as I testified before the House Oversight and Government Reform Committee recently, there are areas where the executive branch should be very cautious.

The House oversight committee held a hearing on electronic monitoring that the U.S. Food and Drug Administration had done of certain whistleblowers in that agency. This monitoring was not limited to work- related activity. The Food and Drug Administration allows its employees to check personal email accounts at work. As a result, the FDA's whistleblower monitoring captured personal email account passwords. It also captured attorney-client communications and confidential communications to Congress and the Office of Special Counsel.

Some of these communications are legally protected. If an agency captures such communications as a result of monitoring, it needs to think about how to handle them very differently; otherwise, it would be the ideal tool to identify and retaliate against whistleblowers. Without precautions, that kind of monitoring could effectively shut down legitimate whistleblower communications.

It wouldn't surprise me, considering the culture of some of these agencies, that is exactly what they want to do, because there is a great deal of peer pressure to go along to get along within these agencies. Whistleblowers, as I said, are kind of like a skunk at a picnic.

There could be safeguards, however. For example, whistleblower communications could be segregated from other communications. Access could be limited to only certain personnel rather than all of the upper management. In any case, whistleblowing disclosures to Congress or the special counsel can't just be routed back to the official accused of wrongdoing.

As the 1990 Executive order made clear, whistleblowing is a Federal employee's duty. It should be considered part of their official responsibilities and something they can do on work time. However, that doesn't mean they aren't allowed to make their protected disclosures confidentially to protect against the usual retaliation. A Federal employee has every right to make protected disclosures anonymously, whether at work or off the job.

Every Member of this body should realize that without some safeguards there is a chance their communications with whistleblowers may be viewed by the executive branch.

These same considerations apply to the intelligence community. The potential problems are heightened if electronic monitoring extends off the job, such as Director Clapper mentioned in the quote I gave. We have to balance detailing insider threats with letting whistleblowers know their legitimate whistleblower communications are protected.

With continuous monitoring in place, any whistleblower would understand their communications with the inspector general or Congress would likely be seen by their agency and punishment could follow. They might perhaps even be seen by those they believe are responsible for waste, fraud, or abuse, and punishment to follow. That leaves the whistleblower open to retaliation.

Even with the protections of this bill, we should all understand it is difficult to prevent retaliation because it is so indigenous in the culture of most government agencies. It requires a lengthy process for an individual to try to prove the retaliation and get any remedy. It is far better, where possible, to take precautions that prevent the likelihood of retaliation even occurring; otherwise, it will make it virtually impossible for there even to be such a thing as an intelligence community whistleblower. Fraud and waste would then go unreported. No one would dare take the risk.

To return to the theme I started with, whistleblowers need protection from retaliation today just as much as they did 25 years ago when the Whistleblower Protection Act was passed on April 10 of that year. I have always said whistleblowers are too often treated like a skunk at a picnic. You have now heard it for the third time. You can't say it too many times. I have seen too many of them retaliated against.

However, 25 years after the Whistleblower Protection Act, the data on whistleblowing is in, and the debate on whether to protect whistleblowers is over. There is widespread public recognition that whistleblowers perform a very valuable public service.

Earlier this year PricewaterhouseCoopers found that 31 percent of serious fraud globally was detected by whistleblowing systems or other tipoffs. According to a 2012 report from another organization, that number is even higher when looking just in the United States, with 51 percent of the fraud tips coming from a company's own employees.

In 2013, of U.S. workers who had observed misconduct and blown the whistle, 40 percent said the existence of whistleblower protection had made them more likely to report misconduct.

Whistleblowers are particularly vital in government, where bureaucrats only seem to work overtime when it comes to resisting transparency and accountability.

A year and a half after the Whistleblower Protection Act, President Bush

issued Executive Order 1990 that said all Federal employees ``shall disclose waste, fraud, abuse and corruption to appropriate authorities.'' That should have changed the entire culture of these agencies that are antiwhistleblower, but it hasn't. But that is what the directive says.

Federal employees are still under obligations this very day. They are fulfilling a civic duty when they blow the whistle.

I encouraged President Reagan and every President after him that we should have a Rose Garden ceremony honoring whistleblowers. If you do that, it sends a signal from the highest level of the U.S. Government to the lowest level of the U.S. Government that whistleblowing is patriotic. Unfortunately, there isn't a single President who has taken me up on my suggestion.

Further, while the Obama administration promised to be the most transparent in history, it has, instead, cracked down on whistleblowers as never before.

Last week, the Supreme Court denied a petition to hear an appeal from a case named Kaplan v. Conyers. The Obama administration's position in that case, if allowed to stand, means untold numbers of Federal employees may lose some of the very same appeal rights we tried to strengthen in the Whistleblower Protection Act. There could be half or more of the Federal employees impacted. Such a situation would undo 130 years of protection for civil servants dating back to the Pendleton Civil Service Reform Act of 1883.

We all remember that President Obama promised to ensure that whistleblowers have full access to the courts and due process. However, his administration has pursued the exact opposite goal here. That ought to be unacceptable to all of us.

I think it is important to send a loud and clear signal that waste, fraud, and abuse won't be tolerated in government, and that is why I am pleased to announce I will officially be forming a whistleblower protection caucus at the beginning of the 114th Congress. Until then, I will be talking to my colleagues and encouraging them to join me as we start putting together an agenda for that caucus in a new Congress.

As we celebrate the 25th anniversary of this very important bill called the Whistleblower Protection Act, we should all recognize whistleblowers for the sacrifices they make. Those who fight waste, fraud, and abuse in the government should be lauded for patriotism. Whistleblower protections are only worth anything if they are enforced.

Just because we have passed good laws does not mean we can stop paying attention to the issue. There must be vigilance and oversight by the Congress.

The best protection for a whistleblower is a culture of understanding and respecting the right to blow the whistle. I hope this whistleblower caucus will send the message that Congress expects that kind of culture.

I call on my colleagues to help me make sure whistleblowers continue to receive the kind of protection they need and deserve.

I suggest the absence of a quorum.

Madam President, I would like to take a few minutes to speak on the bill being considered today, the Paycheck Fairness Act. The proponents of the Paycheck Fairness Act argue that many women continue to earn significantly less pay than men for equal work. I am afraid the effort to consider this bill is nothing more than election- year politics aimed at scoring political points.

Equally unfortunate, the bill will do nothing to address our Nation's anemic economic growth. It will not create a single job for the more than 10 million unemployed Americans. This bill does nothing for the millions of Americans who have become so discouraged with this economy that they have completely given up on looking for work. This political show-vote will not help the millions of women who have lost their jobs or who are now living in poverty as a result of the Obama economy.

Let me be clear: I strongly support equal pay for equal work. I support equal employment opportunities. I abhor discrimination of any kind. Discrimination in the workplace is unacceptable, and must not be tolerated. Workers have been protected against sex-based pay discrimination since the passage of the Equal Pay Act in 1963. Title VII of the Civil Rights Act of 1964 provides additional protections and remedies for discrimination.

Many have concerns that the Paycheck Fairness Act would undermine a business's defense even when the pay disparity is legitimate. The bill would allow unlimited punitive and compensatory damages, while also automatically including employees in a class-action lawsuit unless they specifically choose to opt out. This bill would be a boon to trial lawyers at the expense of job creators and job seekers.

A Washington Post Editorial from September 28, 2010, stated, `` the proposal, which builds on the existing Equal Pay Act, would allow employees and courts to intrude too far into core business decisions.'' It further stated, ``Discrimination is abhorrent, but the Paycheck Fairness Act is not the right fix.''

Rather than consider a politically motivated measure, we should be working together to create good-paying jobs and grow the economy. Instead, the Democratic leadership has chosen to disregard the welfare of struggling Americans and pursue messaging bills. If the majority in the Senate truly cared about helping the middle class, they would allow consideration of Republican amendments that would actually help workers, help the unemployed find work, and grow the economy.

But just like consideration of the unemployment insurance extension bill, the Senate majority has no interest in considering amendments that would actually grow the economy and create jobs. During consideration of that bill, Republicans offered a job-creating amendment that would have repealed provisions of ObamaCare that are proven job killers. It would have spurred job creation through energy development, including authorizing the construction of the Keystone XL Pipeline. It would have provided small businesses, who are responsible for creating 70 percent of jobs in our economy, with permanent tax relief aimed at incentivizing new investments. A version of this amendment has been filed to this bill. Unfortunately, the majority leader is again blocking consideration of any amendments.

While the majority leader pushes ahead with his political agenda, Republicans continue to propose measures that will create jobs and grow the economy. Senator McConnell and Senator Ayotte have put forward an amendment to allow voluntary flexible workplace arrangements such as compensatory time and flexible credit hour agreements for hourly workers. This amendment would provide much needed flexibility for working moms, but was immediately blocked by the majority leader. Why would the majority leader block consideration of such a reasonable proposal?

Senator Alexander has also proposed an amendment that seeks to provide working parents more flexibility in the workplace. Senator Rubio has proposed an amendment to allow employees to seek fair wage increases and remove obstacles for employees to earn merit-based pay raises. In addition, Senators Fischer, Collins and Ayotte have filed an amendment to reaffirm existing laws prohibiting pay discrimination and would prohibit retaliation against employees who inquire about, discuss or disclose their salaries.

Sadly, none of these reasonable, thoughtful amendments to address job creation and workplace flexibility will be considered because the majority leader has already signaled that this debate is not about legislating. It's about political messaging. For these reasons, I must vote against the procedural motion to proceed.

Madam President, there are reports that after we return from either this break or the next, the Senate may take up the so- called Fair Sentencing Act, so I rise today to start discussing this bill with my colleagues, particularly those who do not serve with me on the Judiciary Committee.

Over the past 30 years, this Nation has achieved tremendous success in cutting crime. There are fewer victims who suffer fewer physical and financial injuries. Neighborhood safety has improved, reducing fear and helping economic growth. These gains have been hard won. Congress played a major role, enacting mandatory sentencing guidelines, mandatory minimum sentences, providing assistance to law enforcement, and building more prisons. The mandatory guidelines, combined with abolishing parole, led to lengthier sentences, and what is fair about it all is that we have fewer disparities in sentencing. No longer would the sentence depend on whether the criminal faced a tough or a lenient judge, and factors such as the defendant's race and income could not be taken into account.

Unfortunately, the Supreme Court, applying novel readings of the Constitution, struck down mandatory sentencing guidelines. As a result, Federal judges are departing downward from the guidelines, issuing shorter sentences and injecting more disparity into the system. States are reducing their incarceration rates. While there are probably multiple contributing factors, crime rates recently have been rising. The only means left for Congress to ensure that criminals are sentenced to appropriate sentences then is mandatory minimums, now that the Supreme Court has judged sentencing guidelines as being unconstitutional.

Those convicted of the manufacture, sale, or possession with intent to distribute, and importation of a wide range of drugs, including heroin, cocaine, PCP, LSD, ecstasy, and methamphetamine may have their sentences cut in half or even more from the current mandatory minimums.

Supporters of the bill say it allows for shorter sentencing only for ``nonviolent offenders.'' I am going to prove the bill does more than that. The term

``nonviolent offenders'' is highly misleading. First, that phrase conjures up people in jail for simple possession, and this bill does not apply to simple possession at all, for any drug.

Second, the types of offenses the bill applies to are violent. Importing cocaine is violent. The whole operation turns on violence. Dealing heroin also involves violence or the threat of violence.

Third, the crime for which the defendant is being sentenced might have been violent. The mandatory minimum sentence would be cut even if the criminal's codefendant used a gun.

Fourth, the criminal himself could have a violent history. Although the bill does not apply to a drug crime for which the defendant used violence, it does apply to criminals with a history of violence. That is, the bill would permit a shorter mandatory minimum where the defendant was not violent on this occasion, but was in the past. Supporters of the bill never acknowledge that it would apply to drug dealers with a history of violent crime.

Other provisions of the bill expand the safety valve that allows judges to impose mandatory minimum sentences on offenders with minimal criminal history. The bill's proponents never identify which violent offenders who fail to qualify for even the bill's expanded safety valve should be able to receive the bill's shorter mandatory minimum sentences.

And don't pay attention to the smoke screen that the bill leaves the maximum sentence alone. Judges are not sentencing anywhere near the maximum today. The whole point of the bill is to allow judges to ignore current mandatory minimums for serious offenses such as heroin importation and cocaine dealing, and sentence defendants to half the minimum they are now receiving.

We know from the experience of the States that when mandatory minimum sentences are reduced, judges use their greater discretion only to sentence the same or more leniently, even when the drug offender has a history of violence. For instance, the State of New York changed its drug sentencing laws to give judges more discretion. Judges began in the overwhelming majority of the cases to sentence offenders to the now lower minimum sentences. New York judges have sentenced drug offenders--even offenders with prior felony convictions--to the lower minimums. Do we really want offenders such as these out on the streets earlier than is the case now, and while out there on the street to prey on our citizens? That is what they will do.

Although supporters of the bill claim it will reduce costs, what it will really do is shift costs from prison budgets to crime victims.

As Professor Matt DeLisi of Iowa State University testified before our Judiciary Committee, juvenile drug use is the best predictor of chronic offending and that, in his words, ``drug users offend at levels 3-4 times greater than persons not convicted of drug crimes.'' He stated that criminal justice research shows that ``releasing 1% of the current Bureau of Prison population would result in approximately 32,850 additional murders, rapes, robberies, aggravated assaults, burglaries, auto thefts, and incidents of arson.''

So the empirical data are clear. Lower mandatory minimum sentences mean increased crime and an increased number of victims. Why would we, then, vote to increase crime and create more crime victims?

Various police organizations answer that question by coming out against this bill.

The National Narcotic Officers' Association has written--and I will give you a fairly long quote:

As the men and women in law enforcement who confront

considerable risk daily to stand between poison sellers and

their victims, we cannot find a single good reason to weaken

federal consequences for the worst offenders who are directly

responsible for an egregious amount of personal despair,

community decay, family destruction, and the expenditure of

vast amounts of taxpayer dollars to clean up the messes they

create.

End of quote from the National Narcotic Officers' Association.

The Federal Law Enforcement Officers Association has also come out against the bill. They stated:

It is with great concern that the Federal Law Enforcement

Officers Association views any action or attempt . . . that

would alter or eliminate the current federal sentencing

policy regarding mandatory minimum sentencing.

The mandatory minimum sentencing standard currently in

place is essential to public safety and that of our

membership.

End of quote from the Federal Law Enforcement Officers Association.

Law enforcement is telling us that this bill would be bad policy and create more crime victims, but it is also saying that were this ill- considered legislation to pass, the safety of police officers, who safeguard us, would be jeopardized. How can we possibly do that to those who bravely protect us--our law enforcement people?

The bill is particularly misguided in light of current conditions concerning drug use. We are in the midst of a heroin epidemic right now. Deaths from heroin overdoses in Pennsylvania are way up. In the State of Vermont, the Governor devoted this year's entire state of the State message to the heroin problem. Cutting sentences for all heroin importation and dealing makes no sense at all considering the concerns of these Governors and other State leaders and law enforcement people.

Now let's turn to what the Obama administration thinks. Typical of its pattern of disregarding the law across a large range of areas, this administration refuses to charge some defendants for crimes they duly committed if doing so would subject them to mandatory minimum sentences. Typical with this administration's pattern of disregarding the law, it is not taking action in most situations where States have enacted laws decriminalizing marijuana, even though that is contrary to Federal law. Do you think the Obama administration would stand silently by if a State enacted laws that allowed guns, rather than drugs, to be sold inconsistently with Federal law? Well, of course not.

According to a story this week in the Washington Post, one of the reasons for the heroin epidemic is that marijuana decriminalization is leading growers to produce more heroin for importation into this country. That is because the availability of marijuana is rising and consequently the price is falling. So there is money available to be spent elsewhere. So many who used to grow marijuana now can make much more money cultivating opium poppies for heroin export to this country. But the administration supports this bill, which allows judges to lower mandatory minimum sentences for heroin importation. Doesn't that boggle the mind?

My conservative colleagues who rightly oppose the administration's lawlessness in so many areas should think twice before supporting the administration here. They should oppose a bill that gives judges additional authority only for lowering sentences for dealing, manufacturing, and importing LSD, heroin, cocaine, ecstasy, and methamphetamine.

The National Association of Assistant United States Attorneys has courageously disagreed with the public opinion of their employer, the Department of Justice and Attorney General Holder. The National Association of Assistant United States Attorneys--and, remember, these people are on the Federal payroll enforcing and prosecuting under Federal law--this organization has written in opposition to the bill:

Mandatory minimums deter crime and help gain the

cooperation of defendants in lower-level roles in criminal

organizations to pursue higher-level targets.

They have been demonstrably helpful in reducing crime.

End of quote from the National Association of Assistant United States Attorneys.

So why on Earth, then, would we cut sentences for sellers and importers of the worst drugs now plaguing our cities, our suburbs, and even rural areas?

Not every mandatory minimum sentence may be set at the perfect level. We should and can have a discussion concerning lowering some sentences and maybe even raising others--others that probably should be raised, such as for child pornography, terrorism, sexual assault, domestic violence, and various fraud offenses.

We can reduce jail time but not sentences. Many States have done this for inmates whose risk assessments and behavior in jail, including successful completion of programs proven to reduce recidivism, earn our confidence that these people, out of prison, are

less likely to reoffend. But we should not cut sentences up front for serious offenders such as heroin dealers. We should not do so where these offenders have a history of violence. We should not drastically cut the only tool we have to reduce sentencing disparities among judges.

The mislabeled Fair Sentencing Act is the wrong answer to the problems we face. I hope the Senate will not take up this bill, but if it does, my colleagues should take a clear-eyed look at this very dangerous bill and oppose it, as I will.

I yield the floor and suggest the absence of a quorum.

Mr. President, I would like to take a few minutes to discuss the unemployment insurance extension bill currently being considered. There is little question that the job market remains tight providing few job opportunities for those who are currently unemployed. The unemployment rate remains at historically high levels of around 6.7 percent. However, the unemployment rate only tells part of the story. Millions of Americans have become discouraged and left the labor market entirely or are underemployed. When you consider these Americans, the unemployment rate isn't 6.7 percent, but a much starker 12.7 percent.

It is obvious from these numbers that many Americans continue to struggle in the face of a historically tepid recovery. Republicans and Democrats agree that there are things we can and should do to help the millions of Americans who are out of work and struggling to make ends meet. However, we have conflicting views on the best way to achieve this goal.

In 2008, Congress established the extended Emergency Unemployment Compensation program that provided Federal funded unemployment insurance benefits to the long-term unemployed. This benefit was on top of the 26 weeks of unemployment compensation ordinarily provided by the States. This program was never meant to go on forever. It is a temporary program that was designed to provide relief while we were in the depths of a recession.

This program has since been extended 11 times and we are now debating extending it for the 12th. There are reasonable arguments that at this time the emergency unemployment benefits should be extended once more. But if we are to extend the emergency unemployment program it should be done in a fiscally responsible way.

While the majority argues that the extension is fully offset, this is only true through a budgetary sleight of hand. The largest offset used to pay for the unemployment program is a so-called pension smoothing provision. This provision essentially allows sponsors of pension plans to underfund their pensions over the next few years. This raises concerns that pensions could be underfunded in future years, hurting pensioners, and potentially putting taxpayers on the hook for these plans should they need be taken over by the Pension Benefit Guaranty Corporation.

The Joint Committee on Taxation, JCT, estimates that over the long term the provision will actually cost the Treasury billions of dollars in revenue. As a result, the Congressional Budget Office, CBO, and JCT estimate that overall the bill before us would increase deficits by more than $5 billion between 2024 and 2033.

Moreover, while an extension of emergency employment benefits is well intentioned, it serves only to treat the symptoms of unemployment, while doing nothing to address its cause. Instead of the debate we are having on extending unemployment benefits we should be focused on what can be done to ensure those who want to work are able to find good paying jobs.

Republicans have offered such an approach with the Good Jobs, Good Wages, and Good Hours Act, which was filed as an amendment to the underlying unemployment insurance bill.

This amendment is targeted at job creation be providing small businesses who are responsible for creating 70 percent of jobs in our economy with permanent tax relief aimed at incentivizing new investments. It would further cut red tape that imposes unnecessary burdens on job creators and would modify or repeal provisions of Obamacare that are proven job killers. Moreover, the amendment would spur job creation by increasing energy development by, amongst other things, authorizing the construction of the Keystone XL Pipeline. I ask unanimous consent that a summary of this amendment be printed in the Record.

Unfortunately, the majority leader filled the amendment tree, thereby blocking all amendments. This prevented us from having an up-or-down vote on the jobs amendment I just described as well as several other amendments that sought to improve the underlying bill. As a result, the underlying bill is not fiscally responsible and would do nothing to address the causes of weak job creation. As such, I cannot in good conscience vote in favor of extending unemployment insurance at this time.

Mr. President, I intend to object to any unanimous consent request at the present time relating to the nomination of Katherine M. O'Regan to be an Assistant Secretary of Housing and Urban Development.

Every year, the Department of Housing and Urban Development provides billions of dollars to public housing authorities but provides little oversight for how the money is spent. Many housing authority directors are more concerned with padding their own nests instead of providing safe, affordable housing for people in need. One way to change this is to make detailed spending information available to the general public.

I will object to Ms. O'Regan's nomination because I have not yet received a response to my February 14, 2014 letter to HUD Secretary Shaun Donovan regarding HUD's effort to collect Public Housing Authority salary and compensation data for calendar year 2013. Specifically, I asked when the data would be available to the general public on the HUD website and whether it would be available in a searchable, standard electronic format.

This is the second time HUD has requested salary and compensation data from the 3100 housing authorities across the United States. HUD first requested data for the top five wage earners in August 2011. At that time, I requested that this data be made available to the general public. HUD stated in a December 2011 letter:

This information will be posted on a HUD website,

consistent with applicable law. We are now in the process of

collecting this information for the first time, and expect

that it will be posted during the first quarter of the year.

Despite HUD's pledge, the full set of data has never been posted on the Department website. Instead, it only posted three pages of aggregate data in June 2012, and HUD didn't provide the full set of data to my office until May 2013, nearly 2 years after the data collection process was initiated.

HUD is aware of the impact this data can have when made available to the public. Shortly after the compensation information was requested in 2011, Congress imposed a 1 year salary cap for all housing authority executives. Housing authorities are now using Federal funding not covered by the salary cap to continue paying large salaries and compensation packages. The compensation data currently being collected would shed light on this practice and should be posted on the HUD website as soon as possible.

Mr. President, I intend to object to any unanimous consent request at the present time relating to the nomination of Carolyn Hessler Radelet to be the Director of the Peace Corps.

I will object because I am inquiring into the circumstances related to the refusal of the Peace Corps to grant the Peace Corps inspector general full and timely access to records to which the inspector general is entitled under the Kate Puzey Peace Corps Volunteer Protection Act of 2011 and the Inspector General Act of 1978.

At a hearing before the House Committee on Oversight and Government Reform convened on January 15, 2014, Peace Corps inspector general Kathy Buller detailed difficulties she has encountered in accessing records which she deemed were directly relevant to her review of Peace Corps' handling of reports from its volunteers who claim that they have been sexually assaulted.

According to Inspector General Buller's testimony, records were withheld based on reasoning that directly contravenes the Kate Puzey Act and the Inspector General Act.

In addition, Inspector General Buller testified that even when limited access to records was later granted, most of the relevant information was withheld under an overbroad interpretation of what constitutes ``personally identifying information'' under 22 U.S.C. Sec. 2507a(f)(1)-(2). Inspector General Buller did clarify that, following objections from Congress, Peace Corps narrowed its interpretation of ``personally identifying information'' which allowed her to access slightly more information relating to the subject sexual assaults but not everything to which the inspector general is entitled.

In order to exercise the oversight function envisioned by the Kate Puzey Act and the Inspector General Act, it is critical for the Peace Corps inspector general to have full and timely access to all Peace Corps records which she deems relevant to her review.

The Peace Corps apparently withheld records from the inspector general during the nominee's tenure as the Acting Director, and I would like the opportunity to understand the circumstances more fully.

I appreciate the majority leader yielding.

It has been a tradition in the U.S. Senate--usually this time of the year, when various veterans organizations come to Washington, DC, to testify for their membership before Congress about issues dealing with the veterans of all of our wars--for a person who is chaplain to be guest Chaplain. This year it is my privilege that person for the American Legion be from the State of Iowa.

We have just heard Dr. Daniel A. McClure give his prayer this morning.

Dr. McClure is a veteran of over 40 years' military service with the U.S. Army, Army Reserve, Air Force and National Guard. He retired from the military in 2005. With Vietnam veteran status, he joined the American Legion in 2001 and has since served as post chaplain, district chaplain, department chaplain, oratorical contest judge, and district chairman of the Americanism Commission and Boys State counselor. He is a member of The American Legion Leon Beatty Post 29 in Washington, IA.

Dr. McClure was ordained by the Heritage Baptist Church, Lakeland, FL, in 1979 and has pastored churches in Washington State, Montana, Florida and Iowa. He earned his doctorate at Luther Rice Seminary, Lithonia, GA in 1993. Though he retired from formal duties in 1999, McClure continues to volunteer in all aspects of the ministry.

Dr. McClure currently serves his country and community in a number of capacities. He is president and treasurer of the All Veterans Association, treasurer of the House of Heroes, board chairman of the Tree of Life Free Clinic, a patron of NRA, past president of the local Community Chest, past president of Kiwanis, works with the Lake Darling Youth Center and is chairman of 1st Baptist Church's deacon board in Yarmouth, IA.

Dr. McClure and his wife Marge have been married 48 years, raising a son and a daughter. The McClures are now the grandparents of three boys and one girl.

I am glad to have the privilege of an Iowan serving as the national chaplain of a great veterans organization--the American Legion.

I thank the majority leader.

Schedule

I ask for the yeas and nays.

Madam President, the majority leader, the Senator from Nevada, came to the floor last night to take exception to my criticisms of how the Senate operates these days.

I have criticized the actions of the current majority leadership, of which he is the head.

However, I would like to point out that I have tried to avoid singling him out personally because it is not my intention to engage in personal attacks or name calling.

Still, the fact that he takes my criticisms of the Senate's dysfunction so personally should tell us something.

Yesterday, I criticized the abuse of same-day cloture motions.

In response, Senator Reid said, ``He claims that I file too many cloture motions.''

Well, it often is the majority leader who files the cloture motions, but sometimes it is other members of the majority leadership, and on rare occasions, other Senators.

The fact is, this majority leader has instigated more of the cloture motions than any leader in recent times.

Senator Frist filed about 72 percent of all cloture motions when he was Majority Leader, Senator Daschle filed about 32 percent during his leadership, Senator Lott about 69 percent, and Senator Dole about 50 percent.

Senator Reid has personally filed 94 percent of all the cloture motions since he became majority leader.

And, that is 94 percent of a much bigger number since cloture filings have more than doubled under this majority leadership.

So if the Senator from Nevada takes my criticism of cloture abuse personally, perhaps there is a reason he does.

He also blames Republicans for the fact that he has abused the cloture process, just as I predicted in my speech, which struck such a nerve.

However, I want to be absolutely clear that my criticisms were focused on same-day cloture filings related to legislative business.

In other words, I was specifically criticizing the practice of moving to end consideration of a legislative matter that is subject to amendment before there has been an opportunity for any debate or amendments.

The majority leader went off on a tangent complaining about how many nominees are waiting for confirmation. I don't need to remind anybody that the ability of the minority party to block nominees was eliminated using the nuclear option. Besides, the focus of my speech was on the legislative process.

We can argue about how much debate is too much and how many amendments are too many. But no one can claim that same-day cloture motions were in response to Republican obstruction when there hasn't been any deliberation whatsoever before they are filed.

The majority leader can criticize me and stoop to petty name-calling, but the data I cited was from the non-partisan Congressional Research Service.

This data on same-day cloture speaks for itself. His excuse, ``The Republicans made me do it'' won't fly. In fact, Senator Reid has been caught before trying to blame Republicans for his cloture motions.

The Washington Post Fact Checker gave him two Pinocchios for his claim that Republicans were to blame for a record number of cloture motions.

He tried to claim that every cloture motion represented a Republican filibuster. However, the source he cited was a report by the Congressional Research Service containing a long section under the heading ``Cloture Motions Do Not Correspond With Filibusters.''

That heading pretty much says it all, but it contains about a page and a half of explanation as to why it is erroneous to claim that all cloture motions are in response to filibusters.

Certainly, cloture motions which are filed before there has been one word of debate cannot possibly be in response to a filibuster. Those are the cloture motions my criticism was directed at yesterday.

This is also the problem addressed by the Stop Cloture Abuse Resolution which I introduced yesterday with 25 of my colleagues.

The majority leader did not even attempt to defend the practice of same-day cloture, and understandably so. There is no justification for it.

The majority leader's refusal to acknowledge such a blatant problem, much less put a stop to it, just confirms the need for the Stop Cloture Abuse Resolution.

I should add that the deliberative process can work if it is allowed to, and the bill we have been debating yesterday and today is evidence of that.

It isn't just Republicans who would prefer to go back to the way we did things when the Senate functioned as a deliberative body as it was designed to.

The manager of S. 1086, Senator Mikulski, said earlier today, ``This is one of the first times in a couple of years where we have had an open amendment process, and in some ways we're getting adjusted to how that actually works. This is terrific.''

So even prominent Members of the majority party acknowledge an open amendment process is the way things should work. I have offered a constructive idea along with 25 colleagues to make that the norm again.

Instead of criticizing me, the majority leader should join me and become part of the solution instead of part of the problem.

I ask for the yeas and nays.

I ask unanimous consent to speak as if in morning business.

Mr. President, in the last few weeks I have come to the floor many times to speak about how the Senate has deteriorated from being the deliberative body it is supposed to be. Considering the comity on the floor on this bill under the direction of Senator Harkin, my colleague from Iowa, and other people, this is probably not the most appropriate time to give a speech like this. But we still have problems in the Senate and I wish to address them.

We need to restore the Senate as a deliberative body. I am very concerned the Senate is no longer living up to its reputation as the ``World's Greatest Deliberative Body.''

I have outlined how the Senate ought to function by quoting at length the writings of the primary architect of the U.S. Constitution James Madison. When trying to understand what the authors of the Constitution intended the role of the Senate to be, we can't do any better than James Madison, the father of the Constitution.

The writings of Madison, along with Hamilton and Jay, in the Federalist Papers comprise the most comprehensive and detailed explanation of what the framers of the Constitution intended. This provides an important and

very nonpartisan frame of reference about the role the Senate is supposed to play in our system of government. By going back to our founding document and first principles, we can rise above petty partisan squabbling and start working on how to restore the Senate as the deliberative body it is supposed to be.

I will start by recapping some of the lessons from the Federalist Papers where the Senate has gone off course. Then I will talk about solutions to restore the Senate. I am introducing this solution today with cosponsorship of other Senators, which I will get to in a minute.

In Federalist No. 62, this new creation of a Senate is being explained to the people of New York to convince them to ratify the Constitution. It tells of the lessons Americans learned in the first years of independence under the Articles of Confederation, which had a unicameral legislature, as did most of the States at that time. Based on lessons learned from practical experience then of these State legislatures, James Madison lists four problems that a republic such as ours could face if it doesn't have a properly functioning Senate.

The first problem Madison recounts is a tendency for a group to form in a legislative body that pushes its own agenda as opposed to what the people elected them to do. Madison explains that having a second Chamber like a Senate makes such ``schemes of usurpation or perfidy'' less likely because they would have to capture both Chambers at the same time. The Senate, with longer staggered terms as the Constitution spells out, makes that even less likely.

The second lesson is that a single-chamber legislature with lots of Members tends to ``yield to the impulse of sudden and violent passions and to be seduced by factious leaders into intemperate and pernicious resolutions.''

If that sounds like the House of Representatives today, that is because it is supposed to work that way. The House is supposed to reflect the immediate passions of the day, even if those passions take on a partisan pen. However, when laws are made only by factious leaders, you end up with what Madison calls, ``intemperate and pernicious resolutions.''

So that is where he says the function of the Senate as a deliberative body comes into play.

Madison's third lesson has to do with a need for a body with longer terms that is serious about doing the hard work of legislating, instead of pushing short-term agendas, such as might be the case in a House of Representatives.

To quote Madison:

What indeed are all the repealing, explaining, and amending

laws, which fill and disgrace our voluminous codes, but so

many monuments of deficient wisdom; so many impeachments

exhibited by each succeeding against each preceding session;

so many admonitions to people, of the value of those aids

which may be expected from a well constituted senate?

In other words, what Madison was saying: It is better to take the time to get it right the first time than to have to constantly go back and fix ill-conceived laws. That is what the Senate is composed to do under our Constitution, to make sure we do not get sudden changes or bad legislation out of the other body.

In the fourth and final point, Madison explains that if a legislature is constantly churning out new laws, even if they are good ideas, it causes chaos because no one knows what the law says from day to day. It changes constantly, in other words.

To this point Madison says: ``A continual change even of good measures is inconsistent with every rule of prudence and every prospect of success.''

Madison also points out a problem caused by overactive legislating that we tend to think is unique in modern times; that is, special interest groups that are hired as lobbyists and lawyers. To quote Madison: ``Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people.''

That is a criticism we still hear today.

Just to recap, the Senate was specifically written into our Constitution to solve certain problems; namely, but repetitively, to prevent an agenda that does not reflect that of the American people, to prevent legislation based upon short-term partisan passions, and to pass fewer but better thought-out laws. Of course, starting in 2007, we had a House and a Senate controlled by the same political party and intent on enacting the President's agenda, top of which was his health care law. The deliberative process was cut short and the legislation was rammed through the Senate over the objections of Senators representing 40 percent of the States. The President's health care law is practically the poster child for what Madison called ``intemperate and pernicious resolutions,'' reflecting a partisan agenda that did not enjoy broad support among the American people when it was passed. You know what. It enjoys less support today.

The fact that Congress didn't take the time to think through every aspect of that important health care legislation and work out a consensus that could attract broad support of the Senate has resulted in the need of a series of, as Madison said, ``repealing, explaining and amending laws.''

Of course, the President claimed for himself the authority to unilaterally suspend or amend parts of the law that aren't working rather than come back to Congress that under the Constitution is supposed to be the legislative body. Of course, what the President is doing now is not what the authors of the Constitution intended either. We wouldn't be in this predicament, with a deeply flawed health care law, if the Senate had been allowed to function as it was intended.

Now with neither party today having 60 votes needed to steamroll Members of the minority party, the Senate should go back to functioning as it was intended. Yet that hasn't happened. Instead we have seen an unprecedented abuse of Senate rules to block Senators from participating in the deliberative process. These abuses of Senate rules threaten to fundamentally transform the Senate from the greatest deliberative body in the world into a purely partisan rubberstamp for the agenda of the majority and its leadership. If we allow that to happen, we will see even more of the problems Madison warned about.

The Senate was intended to be a deliberative body and only functions properly when deliberation is allowed. That means we must have debate and amendments.

I hear frequent complaints from Iowans about Congress passing huge bills without Members of Congress having the opportunity to understand all the provisions, much less the people they are supposed to represent having a chance to understand the bills and to weigh in on them. It is now routine for cloture to be filed immediately upon bringing up a matter for consideration. That is not the deliberative process or how the Senate is supposed to operate.

Cloture was invented to allow the Senate to end consideration of a matter after the preponderance of Senators had concluded it had received sufficient consideration. Even that part was a compromise. Before cloture was invented, there was no way to end debate as long as at least one Senator thought a matter needed further consideration.

Cloture was introduced to balance the desire to get things done with the principle that each Senator, as a representative of his or her State, has a right to participate fully in that legislative process. The threshold was later adjusted down from two-thirds of Senators voting to three-fifths of all Senators. That is the famous 60 votes we have to have if we want to end debate. Each time this matter has been revisited, the balance has tilted more in favor of speeding up the process at the expense of allowing Senators to fully represent the people of their States.

At the beginning of the current Congress, the Senate passed changes to the Senate rules to shorten the amount of debate time after cloture is invoked for certain nominees and to expedite consideration of legislation in some situations. These changes were agreed to in exchange for a promise--a real promise--that the so-called nuclear option would not be used.

Notwithstanding that commitment, just a short 10 months later, the nuclear option was used, setting a new precedent that debate on nominations can be cut off by a simple majority of Senators, ignoring the plain text of the cloture rule that is still on the books.

At the end of the day, Members of this body agreed to extinguish certain rights in exchange for the promise not

to use the nuclear option only to have additional rights stripped away 10 months later by a simple majority vote. Taken together, those two episodes represent a dramatic shift toward domination of the Senate by one faction, contrary to Madison's stated intent.

I say all that by way of background, but that is history and the other side will have to learn to live with the ramifications of changes to the nomination process that they forced upon this body.

I would like to turn the focus now to the legislative process and what can be done to restore the Senate to the role envisioned by the authors of the Constitution before it is too late and the idea that I have and some of my colleagues have joined me in a rule change along this line.

When it comes to legislating, we have gotten off track from how the Senate was designed, but we have an opportunity to restore the Senate as a deliberative body. That was an understanding at the beginning of this Congress, that there would be some return to regular order. In exchange for rule changes that expedite the legislative process, the majority leadership would turn to the longstanding tradition of an open amendment process.

In other words, there was an understanding that the Senate would take its time to consider legislation and Senators from both sides would be free to propose amendments and have them voted on. That understanding lasted until Republicans submitted amendments that some on the other side were nervous to have to take a position on. It is no secret the majority leader has gone out of his way to keep Members of his caucus from having to take votes that may hurt them with the people back home.

The Senate rules provide that any Senator may offer an amendment to a bill being considered. Therefore, in order to shield Members from having to take tough votes, the majority leader now routinely moves to shut down all consideration of a bill before amendments are considered.

As I said at the beginning, maybe today isn't the time to give this speech because we have great comity on the bills before the Senate, but we still have a major problem.

Cloture is supposed to be used after the Senate has considered a measure for a period of time and a preponderance of the Senate think it has deliberated enough. Cloture should not be used to prevent any meaningful deliberation from taking place. The average number of cloture motions filed under each session of the Congress under this majority leadership is more than double what it was in prior sessions of Congress under majority leaders of both parties going back to 1987. This alone is an indication that cloture is being overused, even abused, by the majority.

The majority leader will tell you he is forced to file cloture because of Republican filibusters. He might have a point if--and that is a big if--if it was true that after extensive debate and plenty of opportunity to consider amendments Republicans were dragging out debate purely for the sake of delay. However, we can hardly claim that the Senate's deliberation has dragged on too long when it hasn't even begun consideration of the matter in the first place.

We are now at the point where the overwhelming number of motions to cut off debate are made before debate has even started, much less than in response to a filibuster because, obviously, we have to have debate before we have a filibuster.

Let's look at a chart I have that was put together by the Congressional Research Service on cloture motions in relationship to legislative business filed the same day a matter is brought before the Senate--in other words, before debate starts--because we have to have debate before we have a filibuster.

I have color-coded each Congress based on which party controlled the Senate. You will notice that use of same-day cloture averages out to 29 times per Congress up until the 110th Congress when this majority leadership takes over. Then there is a huge jump to 98 same-day cloture motions. That is more than three times the previous average. You will notice a trend toward slightly more use of same-day clotures in the years leading up to 2007 and, of course, that makes both parties guilty.

You can see an unprecedented use of same-day clotures starting when this majority leadership took over. The trend has continued at more than double the previous average in each Congress since this majority leadership took over.

There were 65 same-day cloture motions in the 111th Congress and 67 in the 112th Congress compared to 29 the last time Republicans controlled the Senate, which coincidentally is also the previous average I have talked about.

The last line on the chart shows the total as of January, when we were only halfway through the current Congress. At that time we were already up to 30 same-day cloture motions. That is more than we saw for the entire Congress the last time Republicans were in the majority. We are back to an unprecedented use of cloture to end deliberations before deliberations have even begun, and that is clearly abusive and cannot be justified.

Some people might argue that same-day cloture motions on the motion to proceed should not be counted because the motion to proceed can't be amended. That is debatable, but I will point out that the last column shows same-day cloture filings excluding the motion to proceed, and the trend is exactly the same.

What do we do about this abuse of cloture to end consideration of a bill before it has been considered? Today I am introducing the Stop Cloture Abuse Resolution. That appropriately spells out the acronym SCAR because cloture abuse threatens to scar the body of the Senate. The Stop Cloture Abuse Resolution will amend Senate rules to prohibit the filing of cloture until at least 24 hours after the Senate has proceeded to the matter. That means you will have debate before you file cloture. Debate could be a filibuster, but you have to have debate to have a filibuster. This reform will end, once and for all, the practice of attempting to shut down debate and amendments before the debate has started.

It is important to keep in mind that when Senators are blocked from participating in the legislative process, the people they represent are disenfranchised. By that I don't mean the citizens of the 45 States who elected Republicans. The citizens of States who elected Democratic Senators also expect their Senators to offer amendments and engage with their colleagues and different parties. Forcing a cloture vote before any deliberation prevents even Members of the majority party from offering amendments that may be important to the people they represent. Voters have a right to expect the people they elect to actually do the hard work of legislating, not just be a rubberstamp for the leadership's agenda.

Senators who go along with the tactics that disenfranchise their own constituents should have to explain to those who voted them into office why they are not willing to be full-fledged Senators. The Senate is the world's most deliberative body, and constituents rightfully expect their Senators to be able to vote. They should explain why their loyalty is to party leadership and not to the people of their State.

A Senator's job includes offering amendments. Being a Senator also means sometimes you have to take tough votes on other Senators' amendments that reveal to your constituents where you stand on various issues. It is the job of Senators, quite plainly, to deliberate and to legislate.

The Stop Cloture Abuse Resolution will make it clear that deliberation is the rule, not disenfranchisement. It would establish that a deliberative process is expected, and at least some deliberation must occur before any attempt to silence the voices of Senators and by extension the voices of the people of their respective States.

This is just one reform idea I am proposing for the Senate to consider as we work to restore the Senate as a deliberative body, and that will be introduced today. It would only address, I have to admit, part of the problem. The Senate will also have to address the abuse of filling the tree to block amendments.

The ability to block Senators from offering amendments is actually not found in the Senate rules. Filling the tree is an abuse of Senate precedents. In some ways that makes it the easier problem to address; whereas, a cloture

abuse is an abuse of the Senate cloture rule. The practice of filling the tree to block amendments can be eliminated simply by establishing a new precedent.

As everyone remembers from the nuclear option, establishing a new precedent is a simple process that only requires a majority vote. However, like the nuclear option which established a precedent that the Senate would ignore, the plain text of a rule is still on the books. Ending the ability of a majority leader to block amendments would simply involve replacing the old precedent with a new precedent.

For now, the Stop Cloture Abuse Resolution--going by the acronym SCAR--would be a good start. It would eliminate the scar on the Senate. Adopting the Stop Cloture Abuse Resolution would send a strong message that the Senate will once again deliberate over issues rather than ramming through all of them without careful consideration.

This reform will reduce the urge to force legislation through the Senate based on a short-term partisan agenda and result in fewer but better laws just as James Madison and the other Framers of the Constitution intended. Amending the Senate rules should not be a last resort, and this move should not be necessary.

We have been told the bipartisan child care and development block grant bill will be considered--and is being considered--under an open amendment process. If that happens, and if that marks the beginning of a return to regular order where all Senators are allowed to represent their States to the best of their ability once again, then perhaps this move will not be necessary.

Given the record of the past three Congresses, I don't think anybody should hold their breath on that happening.

It is a good day in the U.S. Senate that this legislation is being considered under the process the Senate was set up to perform--to deliberate, offer amendments, and debate.

If a fully open amendment process is not permitted after all, and if this rare instance of bipartisanship proves to be an exception to the rule, it will prove that the Senate is fundamentally broken and only significant reforms, such as the Stop Cloture Abuse Resolution, can restore the Senate as the world's greatest deliberative body.

I yield the floor and suggest the absence of a quorum.